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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT OF JUSTICE

ACCRA – GHANA, AD. 2017

CORAM: ANIN YEBOAH, JSC [PRESIDING]

BAFFOE BONNIE, JSC.

GBADEGBE, JSC.

APPAU, JSC.

PWAMANG, JSC.

CRIMINAL APPEAL

NO. J3/7/2013

26TH JANUARY, 2017

ERIC ASANTE APPELLANT

VRS

THE REPUBLIC RESPONDENT

JUDGMENT

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PWAMANG, JSC.

On 5th September, 2005 the Appellant was convicted by the High

Court, Tamale of Defilement contrary to Section 101 (2) of the

Criminal Offences Act, 1960 (Act 29) as Amended by the Criminal

Offences (Amendment) Act, 1998, Act 554 and sentenced to 15

years with Hard Labour. He was aggrieved by the judgment so he

appealed against his conviction and sentence but the Court of

Appeal by a unanimous decision dated 6th April, 2006 dismissed the

appeal. On 17th July, 2012 this court granted leave to appellant to

appeal against the judgment of the Court of Appeal and he filed the

pursuant Notice of Appeal on 25th July, 2012.

The case against appellant was that on or about 12th November,

2003, while teaching Agricultural Science at Nyohini Presbyterian

Junior Secondary School (JSS) at Tamale, he carnally knew a pupil

of the school aged 14 years. At that time the victim was living with

her auntie and her auntie’s husband at Nyohini, a suburb of

Tamale. The victim’s biological mother lived in the same area. The

auntie and her husband were also elementary school teachers at

Nyohini but not in the same school as the appellant and the victim.

According the husband of the victim’s auntie, who is the

complainant in the case, on 12th November, 2003 the victim

complained to him of pains in her body and head so he asked her to

attend hospital the next day. Then the next day, that is 13th

November 2003, he the complainant returned from school and met

the victim alone in the house writing a love letter addressed to one

Mr. Eric so he seized it and read. In the letter the victim stated that

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she met the Mr. Eric the previous day and gave him what he

wanted. She thanked him for the money he gave her. She expressed

her love for him and explained that she could not visit him that day

as planned because she was unwell.

The complainant brought the contents of the letter to the attention

of his wife and the victim’s mother and together they questioned the

victim as to who the Mr. Eric was and what she had doing with him.

She told them Mr. Eric was a teacher in her school and her

boyfriend so they demanded that she took them to him. She led

them to the house where the Appellant was staying which is also at

Nyohini. They met with the appellant in his room and accused him

of having sexual relations with their daughter but he denied it

completely wherefore they exchanged words with him and left. On

14th November, 2003 complainant made a report of defilement

against the appellant to the Women and Juvenile Unit (WAJU) of

Tamale Police and they issued a medical form to the victim to

attend Tamale Teaching Hospital for examination. At the hospital

the medical officer who attended to the victim interviewed her and

she stated that the appellant was her boyfriend with whom she had

sexual intercourse on several occasions, the last being on 12th

November, 2003. It would appear that the doctor suspected

pregnancy so he made her to do a scan and it came out that she

was 23 weeks pregnant at the time. She attributed the pregnancy to

the Appellant.

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Appellant was therefore arrested by the police, charged with

defilement and prosecuted by the Attorney General’s Office at

Tamale. It was a summary trial in which the prosecution called five

witnesses including the investigator and the Appellant testified on

oath without calling any witness. He maintained his innocence

through out but finally he was convicted. In this final appeal the

appellant has stated six Grounds of Appeal and they are as follows;

i. The Court of Appeal erred by confirming the Judgment of

the Trial Court in spite of the fact that the Judgment is

against the overwhelming evidence on the record.

ii. The Court of Appeal erred in law by accepting and

confirming the finding of the Trial Court that the pregnancy

of the Complaint was caused by the Appellant without any

DNA Test or any other scientific proof.

iii. The Court of Appeal erred when it accepted the evidence of

the Trial Judge on his (sic) visit to the locus contrary to the

Rules of Court.

iv. The Court of Appeal again erred when it confirmed learned

trial judge’s error in law when he stated that the age of the

alleged victim had been proved beyond reasonable doubt

when no documentary evidence was led to prove the age of

the victim who was a mother at the time of the trial.

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v. The Court of Appeal again erred when it confirmed the

learned trial judge error when he admitted into evidence

alleged letter written by the victim as that letter was not

sent to the forensic laboratory to determine its partner since

there was evidence that there were two teachers having Eric

as their first names.

vi. That learned trial judge erred in law when he sustained an

objection on the Cross-Examination of PW2 on his

credibility.

After filing the appeal in this court the Appellant applied for an

order directed at the victim to present the child delivered of the

disputed pregnancy for DNA testing together with the appellant.

This was to ascertain if the Appellant could be the father of the

child. The application was not opposed by the Attorney-General and

was granted by the court on 22nd July 2014. The appellant faced

challenges in enforcing the order against the victim so further

orders had to be made by the court on 12th November, 2014 and

11th February 2015. Even then it was not until learned counsel for

the appellant, Kwame Boni Esq, proceeded against the victim and

her parents for contempt of the Supreme Court that the child was

made available for the DNA test. The test was finally conducted on

7th July, 2015 at the Forensic Science Laboratory of the Criminal

Investigation Department of the Ghana Police Service in Accra and

a report dated 29th July, 2015 was issued. On 28th July, 2016 the

court, pursuant to R 76 of Supreme Court Rule, 1996 (C.I.16),

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granted leave for the DNA Report to be tendered as new evidence.

DSP/Mr. Edward Kofi Abban, a forensic analyst with the Ghana

Police Forensic Science Laboratory, testified as a court witness. The

evidence thus adduced forms part of the record for the

determination of this appeal.

Before delving into the merits of the appeal, we wish to draw the

attention of counsel to the requirements of the rules of the court

pertaining to the drafting of grounds of appeal in criminal appeals,

particularly the general ground which is commonly referred to as

the omnibus ground. They are contained in R. 33 of (C.I. 16) which

states as follows:

“33. (1) The notice of criminal appeal or notice of an application for

leave to appeal shall set out concisely and under distinct heads

numbered seriatim the grounds upon which the appellant intends to

rely at t the hearing of the appeal without any argument or narrative.

(2) No ground of appeal which is vague or general in terms or

discloses no reasonable ground of appeal shall be permitted except

the general ground that the judgment is unreasonable or cannot be

supported, having regard to the evidence.

It is Regulation 33(2) of C.I.16 that should guide the drafting of the

general ground of appeal in criminal matters and not Regulation 6

(5) of C.I. 16 which relates to civil appeals and talks of “the

judgment is against the weight of the evidence”. In criminal appeals

that ground is drafted as “the judgment is unreasonable or cannot

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be supported having regard to the evidence”. The distinction is

legally significant in that it determines how the appellate court

proceeds in assessing the evidence. See Nyame v Republic [1971]

140.

Nevertheless, in order to do substantial justice in the case we shall

amend ground (i) to read; the judgment cannot be supported having

regard to the evidence. In this wise it is relevant to state the

ingredients of the offence of defilement which are as follows:

(i) That the victim is under the age of 16 years (as provided for

in Act 554).

(ii) Someone had sexual intercourse with her; and

(iii) That person is the accused.

See the case of Republic V Yeboah [1968] GLR 248.

It is also useful to remind ourselves of some fundamental legal

principles pertaining to criminal trials in Ghana. Article 19(2)(c) of

the 1992 Constitution provides that;

“A person charged with a criminal offence shall be presumed

innocent until he is proved or has pleaded guilty.”

Our law is that when a person is charged with a criminal offence it

shall be the duty of the prosecution to prove his guilt beyond

reasonable doubt, meaning the prosecution has the burden to lead

sufficient admissible evidence such that on an assessment of the

totality of the evidence adduced in court, including that led by the

accused person, the court would belief beyond a reasonable doubt

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that the offence has been committed and that it is the accused who

committed it. Apart from specific cases of strict liability offences,

the general rule is that through out a criminal trial the burden of

proving the guilt of the accused person remains with the

prosecution. Therefore, though the accused person may testify and

call witnesses to explain his side of the case where at the close of

the case of the prosecution a prima facie case is made against him,

he is generally not required by the law to prove anything. He is only

to raise a reasonable doubt in the mind of the court as to the

commission of the offence and his complicity in it except where he

relies on a statutory or special defence. See Sections 11(2) 13(1),

15(1) of the Evidence Act, 1975 (NRCD 323) and COP v Antwi

[1961] GLR 408.

However, beyond reasonable doubt does not mean beyond a shadow

of doubt. The guilt of an accused person is sufficiently proved if the

tribunal of fact is convinced that he committed the offence though

there remains a lingering possibility that he is not guilty. See Oteng

v The State [1966] GLR 352.

We wish to also say a few words about the DNA evidence that has

been adduced in this case which appears to be a new area of

scientific evidence as far as our country’s criminal justice system is

concerned. Section 121 of the Criminal Procedure Code 1960

(Act 30) provides that in any criminal proceedings a scientific

report may be used as evidence of the facts contained in it. A

scientific report is prima facie evidence of the matters contained in

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it and not conclusive evidence so the law requires that where the

accuracy of a scientific report is disputed in proceedings then the

person who undertook the investigation or examination and

produced the report should testify and subject himself to cross

examination. See Nyameneba & Ors v The State [1965] GLR 723.

DNA is derived from the chemical substance Deoxyribonucleic Acid

that is used to encode the genetic information in living organisms.

The usual objective of forensic DNA analysis is to detect variations

in the genetic material that differentiate one individual from

another. Its accuracy is rated very high and it is considered reliable.

See Modern Scientific Evidence; The Law and Science of

Expert Testimony, by David I. Faigman et, 2012-2013 Edition

Vol 4 page 117 and the case of Lemour v The State of Florida

802 So. 2d 402 (2001).

Though in our country DNA paternity testing is mostly used in

family suits, it may play an important role in criminal cases such as

rape and defilement where the victim also claims that the accused

is the father of a child born out of the unlawful sexual intercourse

as we have in this case. Where the DNA test confirms the accused

as the father of the child, that would constitute strong evidence of

sexual intercourse between the accused and the victim. If the DNA

test excludes the accused as father of the child, that would mean

that the accused did not engage in the sexual intercourse resulting

in the pregnancy. However, in a case of multiple unlawful sexual

intercourse at different times, if there is compelling evidence

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linking the accused to some other intercourse not connected with

the pregnancy, then he would have to answer to that.

It is with these principles in mind that we consider this appeal and

examine the evidence to determine whether the conviction of the

appellant is supported thereby. We intend to proceed in the order in

which we have set out the ingredients of the offence of defilement.

In Ground IV in the Notice of Appeal the Appellant had attacked the

finding of the court below that the prosecution had sufficiently

proved that the victim was aged below 16 years. However he

abandoned that ground in arguing the appeal in his statement of

case so we accordingly strike it off. The effect is that the finding of

the court below stands meaning the first ingredient of the offence of

defilement was sufficiently proved by the evidence led.

The remaining two ingredients of the offence of defilement namely;

the act of sexual intercourse and the involvement of the appellant

are covered by Ground I of the appeal and we shall consider them

in that order. It is helpful to reproduce the particulars of the charge

that was preferred against the appellant.

“PARTICULARS OF CHARGE

Eric Asante, 26 years, Teacher, on or about 12 day of November,

2003 at Tamale in the Northern Region of the Republic of Ghana

and within the jurisdiction of this court did have carnal knowledge

of one….., a girl of fourteen years of age.”

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Of all the witnesses called by the prosecution none of them saw the

act of sexual intercourse, and this is normal since the act is usually

done in secret. That notwithstanding, this is what the trial court

stated in its judgment as proof of the occurrence of sexual

intercourse:

“With regard to proof of the second element that the victim has

been carnally known, the evidence on this point is so

overwhelming. Apart from the victim’s own testimony, the

medical report on her showing that she was twenty-three

weeks pregnant and that the pregnancy was intra uterine

leaves this fact beyond any doubt. The medical doctor, PW4 in

an answer to a question as to whether he examined the vagina

of the victim to find out if there was any penetration answered

that it was unnecessary since the intra uterine pregnancy

meant that there was penetration.”

The Court of Appeal also held as follows:

“The particulars of offence satisfied the requirement under the

new law by merely stating that sex had taken place “on or

about the 12th of November 2003”. The girl’s testimony and

letter confirmed that sex with the said Eric had taken place, a

couple of days before she was confronted by her guardians.

The fact of the girl’s pregnancy confirms that sexual acts had

taken place and that fact by itself beyond reasonable doubt

discharged the burden of proof required from the prosecution.”

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It is therefore not disputed that apart from the victim saying that

she had sexual intercourse on the specific day of 12 November,

2003, that is two days before she was seen by the doctor, the

Medical Officer did not examine her to ascertain whether it was

true. The fact of the pregnancy confirmed that there was sexual

intercourse with the victim about twenty three weeks prior to the

case being reported but whether there was sexual intercourse on

12th November, 2003 is a different matter. The distinction is very

significant in the peculiar circumstances of this case as will be seen

later in this judgment. It seems to us that the presence of the

pregnancy misled the prosecution to assume too many things. The

appellant had vehemently denied having any sexual intercourse

with the victim on the 12th November, 2003 or 23 weeks back. In

the absence of medical evidence the decision on whether the

prosecution proved beyond reasonable doubt that sexual

intercourse took place on or about 12th November, 2003 ought to

rest on the availability of corroborative evidence and the credibility

of the victim which issues we shall address.

The third element of defilement is that it ought to be proved that it

was the appellant and no other person who had sexual intercourse

with the victim. Here too, it is only the testimony of the victim that

the prosecution proffered as proof that appellant had sexual

intercourse with the victim. None of the witnesses saw the victim

enter appellant’s room on 12/11/2003 or on any other day for that

matter but the trial court and the court below considered the

pregnancy as proof that the Appellant had sexual intercourse with

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the victim. However, the new evidence given by the forensic analyst

is that the DNA tests he conducted showed that the appellant is

excluded from being a father of the child born of the pregnancy in

question. He tendered the DNA report as Exhibit ‘SCA’. His evidence

was not challenged and so we accept it as the truth. That means

that the Appellant was not the person who had the sexual

intercourse with the victim resulting in the pregnancy. Nonetheless,

K. Asiama Sampong, learned Chief State Attorney, in his statement

of case on behalf of the respondent submitted as follows in respect

of the DNA evidence;

“The DNA results shows that the appellant is excluded as the

biological father of the child,…… but that has nothing to do

with the crime of defilement against the appellant. From the

record of proceedings, evidence showed clearly that the

appellant had amorous relationship with the victim who was

at that time fourteen (14) years. Upon these findings the trial

court convicted him and sentenced him to 15 years IHL

imprisonment and not on the issue of pregnancy.”

While we agree with the learned Chief State Attorney that in the

particular circumstances of this case appellant is not entitled to an

acquittal on the sole ground that the DNA evidence excludes him as

the father of the child, it cannot be said that the pregnancy and the

child had nothing to do with the conviction. As pointed out above,

the trial court and the Court of Appeal in their judgments

considered the pregnancy as corroboration of the victim’s testimony

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of sexual intercourse with the Appellant. The import of the DNA

evidence is that the victim was not truthful when she testified on

oath that it was appellant who had sexual intercourse with her

leading to the pregnancy and that has legal implications including

her credibility as a witness. Yet respondent may be right since the

actual charge that was preferred against the appellant was in

respect of sexual intercourse that allegedly occurred on or about

12/11/2003. Therefore the pregnancy aside, the question remains

whether the conviction can be supported by other corroborative

evidence on the record or otherwise.

It is pertinent at this stage to discuss corroboration in relation to

proof in criminal trials in general and sexual offences in particular.

We shall thereafter examine the evidence to see if, in the absence of

the pregnancy, the testimony of the victim was corroborated in the

legal sense. There has never been a general rule in this country that

a court in a criminal trial cannot convict an accused person on only

the testimony of one witness if that witness is found to be credible

and the evidence of the accused does not raise a reasonable doubt

as to his guilt. See Republic v Asafu-Adjei (No2) 1968 GLR 567

CA. However, before NRCD 323 came into force in 1979, the

English rules of evidence which were applicable in Ghana required

that in trials for sexual offences the judge must direct himself and

the jury that corroboration of the victim’s evidence was eminently

desirable in order to convict an accused person. See the case of

Reekie v The Queen (1952) 14 WACA 501. Rationale for this rule

was given in the English case of R. v Henry and Manning (1969)

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53 Crim App Rep 150 where Salmon L.J said as follows at page

153 of the Report:

“What the judge has to do is to use clear and simple language that

will without any doubt convey to the jury that in cases of alleged

sexual offences it is really dangerous to convict on the evidence of

the woman or girl alone. This is dangerous because human

experience has shown that in these courts girls and women do

sometimes tell an entirely false story which is very easy to fabricate,

but extremely difficult to refute. Such stories are fabricated for all

sorts of reasons, which I need not enumerate, and sometimes for no

reason at all.”

If the caution on the need for corroboration was not noted by the

judge or properly given to the jury in the judges summing up, a

conviction could be set aside on an appeal on that ground.

However, it must quickly be added that failure to direct a jury on

the need for corroboration was not a fatal error that automatically

resulted in a conviction being overturned on appeal. In Reekie v

The Queen (supra) , a sexual offence case, Foster-Sutton P, relying

on section 4(1) of the West African Court of Appeal (Criminal Cases)

Ordinance (Cap 265) and the English Criminal Appeal Act, 1907, at

page 502-503 of the Report adopted the following statement of the

law in the case of Rex v Cohen and Bateman, 2 Cr. App. R., 197 by

Channel J at page 207; “ Taking section 4 with its proviso, the effect

is that if there is a wrong decision on any question of law the

appellant has the right to have his appeal allowed, unless the case

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can be brought within the proviso. In that case the Crown has to

show that on the right direction, the jury must have come to the

same conclusion.”

This clarification is necessary because at times the impression is

created that NRCD 323 significantly changed the law in respect of

warning about the need for corroboration in trials of sexual

offences as if the law before the coming into force of NRCD 323

made the warning a rule of thumb breach of which naturally

resulted in a conviction being overturned on appeal. Section 7 (3) of

NRCD 323 provides as follows:

“Unless otherwise provided by this or any other enactment,

corroboration of admitted evidence is not necessary to sustain

any finding of fact or any verdict.”

Then at Section 7 (5) it is provided as follows:

“Nothing in this section shall preclude the court or any party

from commenting on the danger of acting on uncorroborated

evidence or commenting on the weight and credibility of

admitted evidence or preclude the tribunal of fact from

considering the weight and credibility of admitted evidence.”

This implies that the good sense in the policy that it is dangerous to

convict an accused person on uncorroborated evidence is given

recognition in NRCD 323.

Corroboration is evidence which supports the testimony of a

witness by confirming that the witness is telling the truth in some

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material particular in his testimony thereby giving credibility to his

story. Corroborative evidence must be independent of and from a

source other than the witness whose testimony is sought to be

corroborated.

Upon reading the judgment of the High Court we noticed that the

judge, apparently in line with section 7 (5) of NRCD 323, warned

himself about the need for corroborative evidence to support the

testimony of the victim and he went through the proceedings in

search of such corroboration. This is what the trial judge stated in

that regard;

“In this particular case circumstantial evidence abounds

corroborating the prosecutrix story that it was the accused

who debauched her. In the first place, I have found that the

accused person is well known to the victim and that the

relationship goes beyond the teacher-pupil relationship …..

the evidence of Pw3, the victim’s mother shows that the

accused person, on seeing the victim in their company from a

distance unconsciously stood up and called out the victim

by her name… Apart from the conduct of the accused person

tending to show that he had some intimacy with the victim we

have the letter which the victim wrote to Mr. Eric.”

We have perused the record and read carefully the evidence of Pw3

but we are unable to find the matter that the trial judge referred to

as indicating intimacy between the victim and the Appellant. This is

the relevant part of the evidence of Pw3:

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“A few meters to the house I saw some men seated. As we got

near one of them on seeing us got up and I suspected that that

one would be the Eric. I did not know any of them. When we

got there my sister demanded to know who was Eric Asante

and Ruby pointed out the accused who was the one I saw get

up. My sister told him we were there to see him and he

suggested that we should sit there but we told him we wanted

to meet him in his room.”

It therefore appears to us that the finding of intimacy between the

appellant and the victim signified by the appellant calling the victim

by name as made by the trial judge is not borne out by the record.

If the appellant truly had an unlawful relationship with the victim it

is unlikely that he would offer to discuss the mission of her parents

in the presence of others. As for the letter, Exhibit “A”, written by

and found with the victim and not the Appellant, its weight is the

same as the testimony of the victim and since it is not evidence

coming from some other source and independent of the victim it

does not qualify as corroborative evidence. It is self serving and

ought not to have been given much weight.

We like to point out that the fact that corroboration is generally not

mandatory to secure conviction does not mean that where

corroborative evidence could be obtained in a case, the prosecution

can fail to lead such evidence and turn round to argue that

corroboration has not been made a requirement by the statute

creating the offence in question. A prosecution does so at its own

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peril as that failure may raise a reasonable doubt in the mind of the

court as to the guilt of an accused person. Furthermore, if the sole

witness turns out not to be a credible witness, the prosecution’s

case will collapse. Corroborative evidence in a case of this nature

where the victim did not resist sexual intercourse is to produce

medical evidence of penetration including emission of semen into

the victim’s vagina. In this case the victim met the medical doctor

within 48 hours of the alleged intercourse but no effort was made to

examine her vagina for possible medical evidence of penetration.

The evidence of the victim is that on the 12/11/2003 the appellant

requested her to take books to his house after close of classes. It is

inconceivable that no pupil in the class saw the victim take the

books to the house of the teacher. The victim herself mentioned a

friend whom she left her books with on the day she allegedly went

to appellant’s house for the first time and they had sexual

intercourse. Why did the prosecution not produce this friend of the

victim to confirm her story of visiting him in his house.

For instance, in the case of Republic v Yeboah (supra) that the

prosecution referred to and the trial judge relied on, the prosecution

called medical evidence to the effect that the accused person had

chronic gonorrhea and the victim was infected by him. Two friends

of the victim who walked with her to the residence of the accused

person and saw her enter there testified for the prosecution and

this made the accused person to admit that the victim entered his

room. So despite the accused person’s denial of having sexual

intercourse with the victim, the court convicted him on the

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corroborative evidence. Where a party in a trial refers to matters

that are capable of independent proof in a positive manner and

those matters are denied, the party does not establish the truth of

those matters by stating them in the witness box and failing to

proffer the other evidence which in the circumstances of the case

should be available. Where the circumstances of the case are such

that there can be no corroborative evidence, that will be a different

matter but not in this case.

But as we have stated above, in the absence of corroboration, if a

court is convinced beyond reasonable doubt by the testimony of a

sole witness, it may convict. In this case the trial judge in his

judgment stated that even in the absence of the corroborative

evidence he would find that it was the appellant who “ravished the

victim having found that the prosecutrix is a witness of truth.” An

appellate court would ordinarily not interfere with a trial judges

finding of credibility of witnesses based on demeanour since it

would not have had the benefit of hearing and seeing them.

However, in Kyiafi v Wono [1967] GLR 463 at 467 C.A the court

per Ollennu J.A. said as follows:

"It must be observed that the questions of impressiveness or

convincingness are products of credibility and veracity; a court

becomes convinced or unconvinced, impressed or unimpressed with

oral evidence according to the opinion it forms of the veracity of

witnesses."

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A court has to test its impression as to the veracity or truthfulness

of oral testimony of a witness against the whole of the evidence of

that witness and other evidence on record. See Ackom v Republic

[1975] GLR 419. In the circumstances of this case where new

evidence was admitted in the appeal, though we are exercising an

appellate jurisdiction, we are required to determine the veracity of

the victim’s testimony against all the evidence before us. In view of

the evidence before us the question we ask ourselves is; if the trial

judge knew what we now know namely; that the testimony of the

victim to the effect that it was appellant who impregnated her was

deliberate falsehood, whether he would still describe her as a

witness of truth? If she chose to lie on oath about the pregnancy

what else did she lie about in her testimony?

In our judgment the DNA evidence does tremendous damage to the

credibility of the victim and her disposition to speak the truth in

this case is put in serious doubt. It does appear that the reason

Salmon L. J proffered in R v Henry and Manning (supra) for the

insistence on corroboration of a victim’s testimony in sexual

offences is unfortunately justified by this case. Why did the victim

fabricate a false story and repeat it on oath that her pregnancy was

caused by the Appellant? Did she really have any sexual intercourse

at all on 12/11/2003? The totality of the evidence leaves a

reasonable doubt in the mind of the court as to whether on or about

12/11/2003 the victim engaged in sexual intercourse at all and

with the appellant in particular and we are bound by law to resolve

that doubt in favour of the appellant. It is our considered opinion

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that the conviction of the appellant cannot be supported by the

totality of the evidence before us so the appeal must succeed.

Our advice is that where the liberty of the individual is concerned,

prosecutors, defence counsel and judges should keep an open mind

and strictly abide by the time-tested rule that the accused person is

innocent until proven guilty beyond reasonable doubt. In this case

the appellant maintained his innocence right from the first day he

was accused in his room, to the police station and throughout the

trial. There was a hint of doubt as to whether it was the Appellant

who was responsible for the pregnancy when during the cross

examination of the victim it was suggested to her that she had

complained to a friend that her auntie’s husband was sexually

abusing her which she denied. When the auntie’s husband was

under cross examination the court upheld an objection against him

being cross examined on that matter. Counsel for appellant at the

trial stage failed to refer the court to the earlier questions put to the

victim herself and also did not pursue that matter.

Having concluded that the conviction cannot be supported by the

evidence we do not consider it necessary to determine the other

grounds of appeal. We commend Kwame Boni Esq, lead counsel for

the appellant in this court, for his resilience in pursuing justice for

the Appellant. The appeal is allowed and the appellant is acquitted.

Since he has finished serving his sentence of 15 years IHL, an order

of discharge will be otiose. This is an example of the tragedies of the

criminal justice system whereby persons who might not have

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committed crimes get imprisoned or may even suffer the death

penalty. Unfortunately this does not occur in Ghana alone. In 2004,

the United States Congress passed the Innocence Protection Act as

a part of the Justice for All Act, 2004, which allows a convicted

person under a sentence of imprisonment or death who swears that

he is actually innocent to apply for Post-Conviction DNA testing

where it is relevant to his defence. Such testing is paid for by the

Federal government and if an exculpatory report is issued the case

of the convict would be reopened. Similar legislation in our dear

nation will be of assistance in improving access to justice for

innocent but indigent convicted persons.

In his statement of case appellant prayed the court pursuant to

Article 14(7) of the 1992 Constitution to order compensation to be

paid to him on account of his acquittal after he has finished serving

his sentence. We are of the view that the Appellant should apply

formally so that the court will have evidence to form the basis of

any decision on the compensation prayed for.

(SGD) G. PWAMANG JUSTICE OF THE SUPREME COURT

(SGD) ANIN YEBOAH JUSTICE OF THE SUPREME COURT

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(SGD) P. BAFFOE - BONNIE JUSTICE OF THE SUPREME COURT (SGD) N. S. GBADEGBE JUSTICE OF THE SUPREME COURT (SGD) YAW APPAU JUSTICE OF THE SUPREME COURT COUNSEL KWAME BONI WITH HIM FRANCIS-XAVIER KOJO SOSU ESQ FOR THE APPELLANT.

K. ASIAMAH SAMPPONG ESQ (CHIEF STATE ATTORNEY) FOR THE REPUBLIC.